Tenn. law bans posting images that “cause emotional distress”

Tennessee recently enacted legislation making it a crime to post images online …

A new Tennessee law makes it a crime to "transmit or display an image" online that is likely to "frighten, intimidate or cause emotional distress" to someone who sees it. Violations can get you almost a year in jail time or up to $2500 in fines.

The Tennessee legislature has been busy updating its laws for the Internet age, and not always for the better. Last week we reported on a bill that updated Tennessee's theft-of-service laws to include "subscription entertainment services" like Netflix.

The ban on distressing images, which was signed by Gov. Bill Haslam last week, is also an update to existing law. Tennessee law already made it a crime to make phone calls, send emails, or otherwise communicate directly with someone in a manner the sender "reasonably should know" would "cause emotional distress" to the recipient. If the communciation lacked a "legitimate purpose," the sender faced jail time.

The new legislation adds images to the list of communications that can trigger criminal liability. But for image postings, the "emotionally distressed" individual need not be the intended recipient. Anyone who sees the image is a potential victim. If a court decides you "should have known" that an image you posted would be upsetting to someone who sees it, you could face months in prison and thousands of dollars in fines.

If you think that sounds unconstitutional, you're not alone. In a blog post, constitutional scholar Eugene Volokh points out just how broad the legislation is. The law doesn't require that the picture be of the "victim," nor would the government need to prove that you intended the image to be distressing. Volokh points out that a wide variety of images, "pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group," could “cause emotional distress to a similarly situated person of reasonable sensibilities,” triggering liability. He calls the bill "pretty clearly unconstitutional."

Another provision of the legislation governs law enforcement access to the contents of communications on social networking sites. The government can get access to "images or communications" posted to a social networking site by offering "specific and articulable facts," suggesting that the information sought is "relevant and material to an ongoing criminal investigation."

This section, too, faces constitutional problems. Julian Sanchez, a privacy scholar at the Cato Institute, tells Ars that "this is a lower standard than the federal Electronic Communications Privacy Act requires" for unread communications. More importantly, because Tennessee is in the Sixth Circuit, it is bound by that court's Warshak decision, which held that the Fourth Amendment requires the government to obtain a full search warrant in order to access e-mail communications. "That case dealt with e-mail," Sanchez said, "but there's no good reason to think a private message on a social network site is any different."

Rep. Charles Curtiss, the lead sponsor of the legislation, did not respond to our request for comment.

If I were a TN judge, I'd toss it back at the legislatures saying they were being lazy, and didn't think more than 5 minutes in front of their faces at the huge waste in time/money it will cause with witch-hunt issues over-shadowing valid issues like stalking and harassment.

I guess someone of high government importance was fooled into clicking a link to one of the following:Encyclopedia Dramatica's Offended Page, (not the same after it was re-uploaeded, but still just as offensive)Lemon Party (so many "grass roots" political parties popping up, it may be the culprit)Goatse (guaranteed to offend and cause all sorts of distress)

On a more serious note, this doesn't sound entirely different from Ireland's anti-blasphemy law. Both fly firmly in the face of free speech, open inquiry, knowledge, curiosity, capitalistic exchange of ideas, etc etc.

I should sue on grounds that I find photos of TN legislators distressing, since they don't wear burqas in the summer sun

What the frigging hey-doodle-ay, Tennessee? It's like they're TRYING to be a hellish theocracy, what with banning children being ga- excuse me, being George Takei, and now this blatant catch-all which basically criminalizes my very existence, everything I do and say, as a bisexual atheist- because we all know that almost everyone in Tennessee is EXTREMELY offended by the mere notion.

Just how stupid do you have to be in order to be a legislator in Tenn? Could they be any more UN-American? Have they ever read the Constitution of the United States? the Declaration of Independence? (No, those documents would, no doubt, be considered too offensive.)

Wow. This is the most idiotic thing I've read about in... well, at least a week (this is the internet after all).

In all seriousness, though, it's hard to believe that any body of elected officials anywhere could approve of this.

My father-in-law was recently diagnosed with leukemia. I'm pretty sure that telling other people that know him about this will cause them significant "emotional distress." If I were in Tennessee it would apparently be against the law to share this information by telephone or email.

Citizens of Tennessee, it might just be time to start gathering the pitchforks.

LOL, I have another example for you. I bet that it is reasonable to think that posting a photo of a wanted person by the police is going to cause distress in that person. No more wanted posters at the police department website.

Anyone ever read Atlas Shrugged? It was written about a half a decade ago and pretty much has called out the collectivists in our government quite effectively.

"Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll bemuch easier to deal with." ('Atlas Shrugged' 1957)

See any similarities to what Tennessee just did? All told by a woman YEARS ago. And most of the things she has written about are slowly coming to pass.

Wait, wait, wait, when did they get the internet in Tennessee? I thought they were still just getting used to color TV.

Reminds me of The Drew Carey Show episode where Drew got in trouble over the cartoon of the caterpillar trying to have sex with the french fry. Only about 100 times more absurd because it is happening IRL.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.